The More Beds, Better Care Act: Dangers disguised as legislation, part two
Co-Written by: Kim Gale and Palak Mahajan
As we discussed in the first article in this two-part series, thousands of patients every year wait in hospitals for another level of care and are designated as alternate level of care (ALC) patients. A substantial number of these people do not have the capacity to make decisions about their health care and, therefore, rely upon a substitute decision-maker to do so. Bill 7, the More Beds, Better Care Act, 2022, S.O. 2022, c. 16, adversely impacts these already vulnerable members.
Charter challenge to Bill 7
The Ontario Health Coalition (OHC) and the Advocacy Centre for the Elderly (ACE) have launched a Charter challenge against Bill 7 on the grounds that it is a violation of s. 7 and 15 of the Charter. On April 12, 2023, the OHC and ACE filed a Notice of Application with the Ontario Superior Court of Justice challenging Bill 7. The application is supported by evidence from four expert physicians and a national expert in health services.
Section 7 of the Charter
The guarantee of the right to life, as protected by s. 7, includes protection against government measures that have the effect of leading to premature death or a risk of premature death because of lack of access to health medical care or insufficient health care. Bill 7, the regulations and the administrative measures will result in ALC patients being transferred to long-term care homes where they will be less likely to receive the treatment and care they require and, in consequence, they will experience increased suffering and a hastening of death.
Violation of the right to liberty
The grounds raised in the Charter challenge state that Bill 7 violates the right to liberty by: Permitting the discharge of ALC patients from the hospitals when they are still in need of treatment in the hospital. Depriving or fundamentally interfering with the right of the ALC patients or their substitute decision-makers to exercise informed consent relating to the treatment that the patient may or may not receive. Essentially interfering with ALC patients' choice of where to live, limiting access to a spouse, family and personal and medical supports. Allowing, without consent of ALC patients or their substitute decision-makers, for the broad dissemination of the patient's personal health information.
Violation of the right to security of person
The grounds raised in the Charter challenge state that Bill 7 violates the right to security of person by: Fundamentally interfering with the right of ALC patients or their substitute decision-makers to exercise informed consent and to control their bodily integrity free from state interference. Causing significant psychological harm to ALC patients by coercing their transfer to a long-term care home that the ALC patients have not willingly chosen and that may separate the patient from their spouse, family or community or be discordant to their cultural, linguistic or religious affinities. Causing increased suffering and hastening the death of ALC patients who are placed in longterm care homes that are unable to provide for their proper care.
Section 15
Bill 7 draws distinctions based on both age and disability. ALC patients are a unique patient group, who suffer from multiple comorbidities and are overwhelmingly elderly and near the end of their lives. The age of this group is at the core of their chronic medical needs, which led them to be admitted to the hospital and prevents their discharge to the community. The disproportionate impact of the Bill 7 on this group, making it violative of s. 15, is evident from the following: Health care for services required by elderly patients with ongoing and often complex medical needs has been chronically under-resourced, both with respect to reducing the availability of hospital beds and services suitable to caring for the ALC patients and by underfunding longterm care. ALC patients are being stereotyped and labelled as "bed blockers" for trying to access the health care and medical services they need. ALC patients are singled out by being denied the right to informed consent to medical treatment and to the privacy of their health information. ALC patients are coerced to give their consent under the impugned provisions, at the risk of being entirely excluded from the process of seeking admission to a long-term care home and of facing a $400 daily financial penalty if they decline a transfer to a long-term care home that has been chosen for them, without their consent and contrary to generally accepted principles in the provision of medical care in society. ALC patients are subjected to increased and unnecessary physical and psychological harms, including hastening their death.
Bill 7 in the news: Impact on the ground
The wrath of Bill 7 can be evidenced through the following instances that have been highlighted in the national news: $5,200 fees charged in relation to Bill 7: The Ontario Government confirms that seven people have been charged fees in relation to Bill 7. CBC News reported a copy of an invoice of $5,200 ($400 a day for a 13-day hospital stay) directed to one Tamara Moir's fatherin-law. He paid the bill after the family refused to move him from a Chatham-Kent hospital to a long-term care home that they didn't choose. Ontario family angry over $400/day fine for not moving to a long-term care home: Global News reported the story of one Michele Campeau who was faced with the decision of either transferring her mom to a long-term care home that her family hated or paying $400 a day to remain in the health-care facility. Campeau chose neither. The family has been stacking up a monstrous bill since March 11, 2022, that remains unpaid while her mother has stayed at a Windsor hospital. The current situation of Campeau's mother is unknown. From other sources that do, it appears that by now the bill has reached up to $26,000, and Campeau continues to refuse to pay. The Ontario health minister won't divulge total fines for hospital patients refusing transfers to long-term care homes: Ontario Health Minister Sylvia Jones and her ministry are refusing to divulge the amount of money that seven patients in the province have been fined for not accepting transfers from a hospital to a long-term care home not of their choosing. Nearly 300 patients have been moved to long-term care homes not of their choosing under the law, which is aimed at opening much-needed hospital space and the Ontario government has not provided details of the seven patients who have been fined. More than 400 patients moved into Ontario nursing homes they didn't choose to go to: More than 400 patients have been forced into Ontario nursing homes they did not want to go to, and the rate of those moves is increasing, The Canadian Press reported. About one-third of those patients were moved in just February and March of 2024.
Conclusion
Alternatives to Bill 7 There are other alternatives available to the Ontario government to reduce limited acute-care hospital beds and improve care for patients designated as ALC patients: Expand home/community care to reduce hospital/long-term care home admissions. Enhance ALC services in hospitals for needs unmet by the long-term care homes. Increase funding and oversight to improve Ontario long-term care home care quality. Use Home and Community Care Support Services for rare cases of unco-operative ALC patients/substitute decision-makers.
What lawyers can do
Bill 7 is a clear violation of the rights of a big bracket of the elderly. The bill impacts the elderly community, which is the most vulnerable group. As a lawyer, our clients may be impacted by Bill 7, which restricts their rights and remedies should they not want to go to a long-term care home not of their choosing. Some members of the Elder Law Section of the Ontario Bar Association have formed a sub-committee named the Bill 7 Elder Law Sub Committee to address Bill 7. The committee is currently determining whether it would be able to represent a group to be an intervenor in the application hearing.
This is the second of a two-part series. Read the first article: The More Beds, Better Care Act: Dangers disguised as legislation, part one.
This article was originally published by Law360 Canada, part of LexisNexisCanada Inc.